I am not sure if my marriage is valid?

What does the Texas law say about my marriage if it is a common law marriage?   In order to promote the public health and welfare and to provide the necessary records, the Texas Family Code specifies detailed rules to be followed in establishing the marriage relationship. However, in order to provide stability for those entering in to the marriage relationship in good faith and to provide for an orderly determination of parentage and security for the children of the relationship, it is the policy of the State of Texas to preserve and uphold each marriage against claims of invalidity unless a strong reason exists for holding the marriage void or voidable. Therefore, every marriage entered into in this state is presumed to be valid unless expressly made void by law or unless expressly made voidable by the Texas Family Code and annulled as provided by that Code.

 In De Leon v. Perry, 975 F. Supp. 2d 632 (W.D. Tex. 2014), aff’d, 791 F.3d 619 (5th Cir. 2015). Under Texas law, the general rule is that a marriage valid where contracted is valid everywhere and that one void where contracted is void everywhere. The validity of the marriage is generally determined by the law of the place where it is celebrated.

In the case of Estate of Claveria v. Claveria, 615 S.W.2d 164 (Tex. 1981). Once a common-law marriage exists, it, like any other marriage, may be terminated only by death or court decree. The spouses’ subsequent denials of a common-law marriage do not undo the marriage.

In Adeleye v. Driscal, 544 S.W.3d 467 (Tex. App.—Houston [14th Dist.] 2018, no pet.). The Trial court found that the parties had a valid marriage for a customary Nigerian marriage by proxy. On appeal, husband argued they were engaged and that he was still married to another person but was unable to overcome presumption that the more recent marriage was valid.

In Zewde v. Abadi, 529 S.W.3d 189 (Tex. App.—Houston [14th Dist.] 2017, no pet.). Evidence of divorce decree issued in foreign country, inter alia, was sufficient to support finding that prior marriage was validly dissolved.

In Fuentes v. Zaragoza, 555 S.W.3d 141 (Tex. App.—Houston [1st Dist.] 2018, pet. denied). The Wife filed a petition for divorce in the United States; both she and husband were Mexican citizens married in the United States. Husband claimed he divorced wife in Mexico fifty-five years prior to her petition for divorce and had subsequently married someone else even though he continued to live with wife for fifty years following the alleged divorce. Court held marriage valid and declined to recognize the Mexican divorce as a foreign judgment obtained without due process.

What if my spouse does not know if she is divorced?

As a divorce attorney, we encounter this situation frequently.  When two or more marriages of a person to different spouses are alleged, the most recent marriage is presumed to be valid as against each marriage that precedes the most recent marriage until one who asserts the validity of a prior marriage proves the validity of the prior marriage. To rebut the presumption of validity, a party must prove that a marriage is either void or voidable as provided by Texas Family Code chapter 6, Suit for Dissolution of Marriage. Typically, the ground alleged for rebutting the presumption of a valid marriage is that the petitioner is currently married to another person and that the earlier marriage has not been dissolved.

In the case of Estate of Claveria v. Claveria, 615 S.W.2d 164 (Tex. 1981). The presumption that the most recent marriage is a valid one continues until the impediment of a prior marriage and its continuing validity is proven.

In Davis v. Davis, 521 S.W.2d 603 (Tex. 1975). To rebut the presumption that the most recent marriage is valid, it is not necessary to prove the nonexistence of divorce in every jurisdiction where proceedings could have been possible. It is necessary only to rule out those proceedings where one might reasonably have been expected to have pursued them.

In Adeleye v. Driscal, 544 S.W.3d 467 (Tex. App.—Houston [14th Dist.] 2018, no pet.). When two or more marriages of a person to different spouses are alleged, courts presume that the most recent marriage is valid against each marriage that precedes it, until one who asserts the validity of a previous marriage proves its validity.

In Zewde v. Abadi, 529 S.W.3d 189 (Tex. App.—Houston [14th Dist.] 2017, no pet.). Evidence of divorce decree issued in foreign country, inter alia, was sufficient to support finding that prior marriage was validly dissolved.

What if my spouse was married in another State?

Our clients will usually inquiry as to the validity of a marriage if it was done outside of Texas  The law of this state applies to persons married elsewhere who are domiciled in this state. This statute is considered an explicit directive as to “choice of law,” as recognized by Chief Justice Jefferson in his concurrence in Citizens Insurance Co. v. Daccach, 217 S.W.3d 430, 464 (Tex. 2007). In the absence of such an explicit statutory directive, Restatement (Second) of Conflict of Laws section 6 sets forth the applicable factors in determining choice of law.

In the case of De Leon v. Perry, 975 F. Supp. 2d 632 (W.D. Tex. 2014), aff’d, 791 F.3d 619 (5th Cir. 2015). Under Texas law, the general rule is that a marriage valid where contracted is valid everywhere and that one void where contracted is void everywhere. The validity of the marriage is generally determined by the law of the place where it is celebrated.

In the case of Fuentes v. Zaragoza, 555 S.W.3d 141 (Tex. App.—Houston [1st Dist.] 2018, pet. denied). Texas law presumes that every marriage is valid, including marriages performed outside the state.

In Durr v. Newman, 537 S.W.2d 323 (Tex. Civ. App.—El Paso 1976, writ ref’d n.r.e.). The validity of a marriage is determined by the law of the place where it was contracted or celebrated. Except as expressly provided by statute or by the constitution, a person, regardless of age, who has been married in accordance with the law of this state has the capacity and power of an adult, including the capacity to contract.

A person who is or has been married under Texas law is no longer a child. A married child does not lose his or her adult status if the marriage ends in divorce. However, an annulment of a child’s marriage does restore minority status because an annulment voids the marriage from its inception. A minor cannot enter into a common law marriage.

As a divorce attorney,  complication do arise when individuals allege that their marriage if not valid because the other spouse can not prove the validity of a divorce from a previous spouse.  Although these situations are problematic in resolving a quick divorce,  the solution can be found in the case law in Texas as discussed above and in the Texas Family Code.   An attorney should always be retained if a person has a conflict or dispute with their current marriage as to whether they need a divorce or do not need to get a divorce.